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2016 green paper


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2016 Green Paper on International Migration

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2016 green paper

  1. 1. home affairs Department: Home Affairs REPUBLIC OF SOUTH AFRICA 24 JUNE 2016 GREEN PAPER ON THE INTERNATIONALMIGRATION 1, MKN Gigaba, Minister of Home Affairs, intend in terms of section 85 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) to publish the Green Paper on International Migration for public comments. Interested persons and organisations are invited to submit any substantiated comments or representations by no later than 30 September 2016. Written submissions can be sent to the following address: The Director General: Department of Home Affairs, Private bag x114, Pretoria, 0001 For attention: Mr Sihle Mthiyane, Director: Policy Development Email: greenpaper( Tel: 012 406 4353 Minister of Home Affairs This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   15 Government Notices • Goewermentskennisgewings Home Affairs, Department of/ Binnelandse Sake, Departement van DEPARTMENT OF HOME AFFAIRS NO. 738 24 JUNE 2016 738 Constitution of the Republic of South Africa (108/1996): Green Paper on International Migration in South Africa: For public comments 40088
  2. 2. lik-14, home affairs x Department: Home Affairs REPUBLIC OF SOUTH AFRICA This gazette is also available free online at 16   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 1 GREEN PAPER ON INTERNATIONAL MIGRATION IN SOUTH AFRICA 21 JUNE 2016 © Department of Home Affairs Copyright subsists in this work. In terms of the Copyright Act, 1978 (Act No 98 of 1978), no part of this document may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without acknowledging the copyright. 1 GREEN PAPER ON INTERNATIONAL MIGRATION IN SOUTH AFRICA 21 JUNE 2016 © Department of Home Affairs Copyright subsists in this work. In terms of the Copyright Act, 1978 (Act No 98 of 1978), no part of this document may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without acknowledging the copyright.
  3. 3. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   17 2 TABLE OF CONTENTS LIST OF ABBREVIATIONS ..............................................................................................................................3 DEFINITION OF COMMON INTERNATIONAL MIGRATION TERMS..................................................5 LIST OF TABLES................................................................................................................................................7 CHAPTER 1: OVERVIEW OF INTERNATIONAL MIGRATION IN SOUTH AFRICA .........................8 Introduction........................................................................................................................................................8 The limitations of the current policy and approach............................................................................................9 Motivation for a new White Paper on international migration.........................................................................13 Vision for a new international migration policy in SA ....................................................................................15 CHAPTER 2: EVOLUTION OF INTERNATIONAL MIGRATION POLICY IN SA ..............................19 Introduction......................................................................................................................................................19 Colonial and pre-1948 international migration policy .....................................................................................19 Apartheid international migration policy .........................................................................................................20 Post-1994 international migration policy .........................................................................................................21 CHAPTER 3: STATISTICAL PROFILES OF INTERNATIONAL MIGRANTS .....................................26 Introduction......................................................................................................................................................26 Visa and permitting regime ..............................................................................................................................27 Refugee regime ................................................................................................................................................29 Irregular migration and deportation .................................................................................................................31 CHAPTER 4: POLICY AND STRATEGIC OPTIONS .................................................................................32 Introduction......................................................................................................................................................32 Management of admissions and departures......................................................................................................32 Management of residency and naturalisation ...................................................................................................39 Management of international migrants with critical skills and capital.............................................................42 Management of ties with South African expatriates ........................................................................................47 Management of international migration in the African context .......................................................................51 Management of asylum seekers and refugees ..................................................................................................63 Management of the integration process for international migrants ..................................................................69 CHAPTER 5: CAPACITY FOR MANAGING INTERNATIONAL MIGRATION...................................73 CONCLUSION...................................................................................................................................................77
  4. 4. This gazette is also available free online at 18   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 3 LIST OF ABBREVIATIONS AEC: African Economic Community AMU: Arab Maghreb Union AU: African Union BMA: Border Management Authority CENSAD: Community of Sahel-Saharan States CFTA: Continental Free Trade Area COGTA- Department of Cooperative Governance and traditional Affairs COMESA: Common Market for Eastern and Southern Africa DHA: Department of Home Affairs DHET: Department of Higher Education and Training DIRCO: Department of International Relations and Cooperation DOH: Department of Health DSD: Department of Social Development DTI: Department of Trade and Industry EAC: East African Community EC: European Community ECCAS: Economic Community of Central African States ECOWAS: Economic Community of Western African States HRDCSA: Human Resource Development Council of South Africa IAB: Immigration Advisory Board IGAD: Intergovernmental Authority on development IGRFA: Intergovernmental Relations Framework Act ILO: International Labour Organisation IOM: International Organisation for Migration LSA: Lesotho Special Permit NDP: National Development Plan
  5. 5. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   19 4 NEDLAC: National Economic development and Labour Council OAU: Organisation of African Unity OSBP: One-Stop Border Post POE: Ports of Entry RAB: Refugee Appeal Board ROSA: Registration of South Africans Abroad SADC: Southern African Development Community SANDF: South African National Defence Force SAPS: South African Police service SARS: South African Revenue Services SCRA: Standing Committee for Refugee Affairs TEBA: The Employment Bureau of Africa UN: United Nations UNHCR: United Nations High Commissioner for Refugees ZSP: Zimbabwe Special Permit
  6. 6. This gazette is also available free online at 20   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 5 DEFINITION OF COMMON INTERNATIONAL MIGRATION TERMS a) Asylum seeker: refers to a person who seeks safety from persecution or serious harm in a country other than his or her own and awaits a decision on the application for refugee status. b) Border management: commonly defined as the government functions of immigration, customs and excise, and policing, with the aim of controlling and regulating the flow of people and goods across a country’s border in the national interest (particularly economic development, security and peace). c) Critical skills list: refers to a legislated list of scarce skills that are in demand for growing the economy. d) Economic migrant: refers to foreign nationals who migrate for economic reasons such as seeking employment or to conduct business. e) Emigration: refers to the act of departing or exiting from one’s country (country of origin or of habitual residence) with a view to settling in another (host country). f) Family reunion / family reunification migrants: refers to people sharing family ties joining people who have already entered an immigration country under one of the above mentioned categories. g) Forced migration: in a broader sense, this includes not only refugees and asylum seekers but also people forced to move due to external factors, such as environmental catastrophes or development projects. h) International migration: refers to any movement by a person across an international border, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is. Short-term international migration refers to at least three months duration of stay in the country, or away from the country of habitual residence. Long- term international migration exists when the period of stay is at least one year.1 i) Irregular migrants (or undocumented / illegal migrants): these are people who enter a country, usually in search of income-generating activities, without the necessary documents and permits. j) Migration management: this term is used to encompass numerous governmental functions within a national system for the orderly and humane management of cross- border migration. It refers to a planned approach to the development of policy, legislative and administrative responses to key migration issues. k) Naturalization: refers to an act of granting of citizenship by a state to a non-national through a formal act on the application of the individual concerned. l) Permanent residence permit: refers to authorisation granted to certain categories of foreign nationals by the state to reside in the country permanently. m) Port of entry: refers to a place designated by the Minister in the RSA where all persons have to report to an immigration officer before entering or leaving the country. 1 International Organization for Migration
  7. 7. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   21 6 n) Refugee: a person who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. o) Resettlement: refers to the relocation and integration of people (refugees, internally displaced persons, etc.) into another geographical area and environment, usually in a third country. p) Temporary residence visa: refers to any of the visas issued to a foreign national to enter and temporarily reside in the country. These include transit, visitors, work and business visa. q) Visa exemption: refers to the act of exempting any person or category of persons from requirements of obtaining a visa. r) Xenophobia: At the international level, no universally accepted definition of xenophobia exists, although it can be described as attitudes, prejudices and behaviour that reject, exclude and often vilify persons, based on the perception that they are outsiders or foreigners to the community, society or national identity.
  8. 8. This gazette is also available free online at 22   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 7 LIST OF TABLES Table Number Title Page number 1 Trends on international movements through the POE 26 2 Employment of migrant by sector 27 3 Applications for Permanent Residence Permits 29 4 Top 15 African countries of origin for asylum seekers 30
  9. 9. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   23 8 CHAPTER 1: OVERVIEW OF INTERNATIONAL MIGRATION IN SOUTH AFRICA Introduction South Africa (SA) as a sovereign state has defined borders that are recognised by approximately two hundred other states into which the political and legal world is divided. The policy on international migration that we adopt through a democratic process will reflect how our nation of fifty-five million people understands that world and wants to relate to the rest of the seven billion humans who share planet Earth. Humans have always moved, and will always move, to where they are secure and can develop to their potential. The global movement of people, information, technology and capital across the globe gives us huge opportunities as a nation and at the same time presents very serious risks. According to the 2013 United Nations population report at least 3% (232 million) of the human population are international migrants who have moved across borders to live in other countries for twelve months or more. A random sample would include labourers, unqualified artisans, highly qualified professionals, families and mass migrations caused by violence or natural disasters. People migrate for complex and varied reasons. Young men have constituted a major proportion of those migrating annually, but increasingly women and children are migrating. The overall number of migrants has been increasing steadily owing to opportunities offered by rapid transport, accessibility to communications as well as ‘push and pull’ factors. ‘Pull’ factors include economic and professional opportunities and safety. ‘Push’ factors include large economic inequalities (domestic and international), conflicts, persecution, degraded environments and climate change. To discuss migration meaningfully we must think nationally (across sectors and spheres of government), regionally and globally while understanding that the policy adopted will impact on every community and individual in SA including our citizens visiting or residing in other countries. No nation in a world with a globalised economy can survive or thrive in isolation; or without due regard for international laws, conventions, treaties and agreements. In general, South Africans are proud of the role we are playing internationally to strengthen collective peace and security and confront problems such as climate change, pandemics and poverty. A war or the collapse of a state anywhere in a highly globalised world impacts directly on global security and how much we pay for fuel or food and insurance. There will be mass migration and a rise in risks, threats and costs if all or part of a state collapses. Examples are Somalia, Libya, Iraq and Syria. The largest instance was Europe in the 1940s. We also celebrate and are proud of the international achievements of our athletes, scientists and entrepreneurs. None of these achievements would be possible if international migration was not possible and states closed their borders. As a member of the family of nations, our chances of peace and prosperity are far greater in a world where states cooperate and their citizens are free to travel, work, study, research, enjoy culture and build relationships.
  10. 10. This gazette is also available free online at 24   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 9 The Green Paper argues that the current international migration policy must be replaced as it does not enable SA to adequately embrace global opportunities while safeguarding our sovereignty and ensuring public safety and national security. National thinking and attitudes to international migration are currently influenced by an unproductive debate between those who call for stricter immigration controls and those who call for controls to be relaxed. The discourse is in general characterised by strong emotions, stereotypes and contested statistics. Discussions are usually limited by “us and them” thinking that either sets in opposition the rights of immigrants to the rights of citizens and the state; or focuses on either our domestic or our global interests. SA has not yet built a consensus at policy, legislative and strategic levels on how to manage international migration for development. What is proposed in the Green Paper is that by adopting a managed migration approach we can work together to achieve common goals. The limitations of the current policy and approach The current policy on international migration is set out in the 1999 White Paper on International Migration and its approach characterises a problematical way of thinking and acting about immigration that is summed up below. International migration is regarded as a routine administrative function of the state The approach to international migration in the 1999 White Paper is largely static and limited to compliance rather than at managing international migration strategically. As a result, there is a lack of a pro-active management of international migration and this does not advance the national security and development agenda of the country. Home Affairs has historically been regarded as performing routine administrative functions in a low-value, low-security environment. Consequently, its systems are outdated, there is grossly inadequate capacity and the entire operational budget for immigration functions is less than a billion rand. The focus is biased towards formal rights rather than on understanding that international migration must be managed professionally, securely and strategically to achieve national priorities. The current Green Paper proposes that international migration must be managed proactively and strategically in order to contribute to national priorities such as nation building and social cohesion, inclusive economic growth and national security. SA needs to start a conversation on the importance of international migration so that there can be consensus on its contribution to meeting broadly supported national goals. For example, the National Development Plan (NDP) prioritises the acquisition of skills, some of which must be recruited internationally, in
  11. 11. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   25 10 order to achieve national priorities such as inclusive economic growth. However, SA has not put in place adequate policy, strategies, institutions and capacity for attracting, recruiting and retaining international migrants with the necessary skills and resources. Lack of a risk-based approach to international migration The current White Paper relies on the mechanical application of rules to manage risks, rather than the integrated intelligence-based approach that is best practice globally. SA has consequently invested little in the effective and secure management of international migration so that risks can be evaluated and mitigated adequately. To obtain a business or residence visa in SA certain formal conditions must be met, including proof of financial resources, police clearance and checks against Interpol and other watch-lists. Countries that effectively manage risks have in addition put in place the people, systems and awareness needed to monitor and assess risks, starting with a complete official history that the applicant or traveller has with the destination country. The capacity to analyse and take strategic decisions is fundamental together with the availability of the necessary information from other departments, such as the State Security, Transport, SAPS, SARS, the DTI and Health. Countries with a similar risk profile to SA that effectively manage immigration apply, to a far greater extent, the basic principle of keeping risks outside their borders. This includes doing adequate checks at missions and by airline liaison officers at key airports. The cost of these measures is far lower than that of dealing with threats such as fugitive crime bosses once they have established themselves in SA. The same measures, such as the use of biometrics, allow for the much more rapid processing of legitimate travellers, and the economic benefits exceed by far the cost of maintaining modern systems that are managed and operated by specialists. In the Republic of South Africa (RSA) risks have to be managed within the framework of the Constitution and the human rights of both citizens and other nationals must be respected and protected. Immigration that is not managed through a risk-based approach is poorly managed. This gives rise to systemic corruption as well as exposing all who live in the country to serious risks such as terrorism and the smuggling of drugs. Instability will increase and skilled migrants will not be recruited efficiently, thus undermining development. Job opportunities will not expand and this in turn will generate xenophobia and more instability.
  12. 12. This gazette is also available free online at 26   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 11 Little awareness of historical and geo-political contexts The 1999 White Paper was an important instrument for deracialising apartheid immigration legislation and it adopted the formal principles of immigration administration that are promoted by the United Nations (UN) and found in middle or higher income countries. However, the largest specific policy gap in the White Paper is that there is no sense of SA being an African state situated in the Southern African Development Community (SADC), which is one of the eight regional Communities recognised by the African Union [AU]. Under colonialism and its apartheid manifestation, immigration linked to citizenship was strictly limited to persons deemed to be “Europeans”. Africans were classified as “Natives” and consigned to the migrant labour system that maintained colonial economies across southern Africa. The 1999 White Paper opened our borders to Africa and the world but reserved the right to immigrate largely to those with high level skills or capital. Workers with low to mid-level skills from SADC countries can only be recruited by farmers, the mines and other companies under a temporary Corporate Work Visa that has roots in the migrant labour system. In general, the White Paper is conspicuously silent on the need to manage historic flows of labour within SADC in a way that will break with the colonial past by promoting regional integration and industrial development. Because of our shared colonial history, the development gap between SA and its neighbours is larger than in any other region globally – SA’s GDP per capita is five to seven times that of the rest of SADC2 . The Green Paper seeks to address this historical and geographical reality and put forward options that would help enable SA, Southern Africa and Africa to develop its own markets, industries and skills base. Lack of a holistic approach to immigration policy leading to policy gaps The first Green Paper on International Immigration (1997) covered immigration, asylum seekers and refugees. The White Paper excludes policy on asylum seekers and refugees, which is covered in the Refugees Act. The approach taken in the 2016 Green Paper is that international migration must be dealt with holistically as many aspects are interconnected and this manifests in concrete processes and the lives of people. For example, providing protection to refugees and asylum seekers falls in the human rights domain; but it also carries security risks for the host country that must be managed using the same security systems that 2 TIPS Annual Forum 2015
  13. 13. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   27 12 cover immigration. More skilled refugees could successfully apply abroad to work and stay in SA under the immigration act if the required systems were established. The White Paper is also not holistic because it does not deal with emigration, defined as the settlement of South Africans in other countries. These South Africans represent both a loss to the country as well as potential skills and resources which could be harnessed creatively to advance our development. The 2016 Green Paper thus addresses the question of how to engage with South African emigrant communities abroad. Serious policy gaps regarding asylum seekers and refugees At the level of policy, legislation, strategy and systems, the asylum seeker and refugee regime that was established through the 1998 Refugees Act has serious gaps that have only been partially addressed through amendments. A contributing factor was the assumption that numbers of asylum seekers would be low, given the relative stability of SADC and the distance from typical refugee sending countries. In part, this was a consequence of not considering historical flows of labour within SADC and thus not being prepared for hundreds of thousands of SADC citizens claiming asylum so they could work while their claims were being adjudicated. The largest influx came as result of economic collapse in Zimbabwe but there is a strong underlying trend from across the region. Another factor is the high level of activity of human smugglers and traffickers who bring in people under the guise of being asylum seekers from as far as Asia and North East Africa. While the policy of non-encampment can be fully justified there was no provision made for providing indigent asylum seekers with basic food and accommodation, leading to the courts obliging the DHA to consider issuing deserving cases with permits allowing them to work or study. This has become a powerful “pull factor” which further burdens the asylum system leading to many adjudication cases being delayed for years. There has been no additional funding to increase capacity in areas such as the two boards dealing with appeals, even though this would be a fraction of the additional burden that is placed by long-stayers on social services. Besides policy gaps, this points to the need for the state to move more quickly to a more integrated and strategic approach to planning and budgeting.
  14. 14. This gazette is also available free online at 28   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 13 Capacity constraints to manage international migration In this context the definition of “capacity” should be understood to include all major factors that enable a state to manage international migration. This includes the vision, understanding and attitudes that are prevalent amongst leaders and the public; policy and regulatory frameworks; and the institutional and administrative resources required to implement the policies. It also includes capacity to secure and defend the people, systems and institutions involved in the management of international migration. Amongst other serious threats, the systems of the DHA are under continual attack by criminal syndicates. Critical to ensure both security and efficiency, and to protect human rights, are the quantum and quality of human resources that manage immigration systems. The limited capacity of SA to manage international migration is due to a lack of appreciation of its positive role and strategic importance. Contributing to the situation described above has been a tendency to regard the DHA as the sole department responsible for the management of international migration. This has contributed to the lack in SA of approaches involving the whole of the state and civil society3 , which is contrary to best practice globally. A strong international trend is for countries to move to an integrated approach, with departments working together and in harmony with civil society stakeholders in order to achieve common security and developmental objectives. In SA, because there is little national consensus around the importance and goals of international migration, government and civil society often decide on matters in court and those decisions often drive policy. This can be disruptive and have unintended consequences, such as the 2004 Watchenuka judgement which entitles asylum seekers to work and study - a major pull factor that overwhelmed the asylum system. The Green Paper proposes that SA should adopt an approach to immigration that is strategically managed and which involves the whole of the state and civil society led by the elected government. Motivation for a new White Paper on international migration It has been over 17 years since the White Paper on International Migration approved by Cabinet in March 1999, became the basis of immigration legislation and regulations. Although there have been significant economic, social, legislative and regulatory changes 3 Civil society can be defined in this context as those social formations that have a claim upon the state.
  15. 15. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   29 14 since then, there has not been a comprehensive review of policy. Essentially, the country’s formal international migration policy has remained in place since 1999 despite significant changes in the country, region and world. Notable developments include the following:  SA is a major international player in various international (multilateral and bilateral) platforms that deal with peace keeping missions and development;  SA has become a major destination and transport hub for the continent and the world. Most SADC nationals, for example, are transiting through SA to the continent and the world. World leaders, including politicians and business persons, travel through SA to the region.  SA has become a platform for investment into Africa. South African companies are also increasingly expanding their businesses into Africa and other continents.  Migrants from the African continent, as far as North Africa, are transiting through SA to their preferred destination countries in Europe and North America. This has been exacerbated by the tightening of borders and political instability in North Africa, the Middle East and Europe.  SA continues to receive a high number of individual asylum seekers from almost all the regions of the world, including asylum seekers from countries that are politically stable.  SA attracts tourists from all regions of the world because of its climate, developed infrastructure and various tourist attractions; and it has become a major venue for international events.  African countries continue to liberalise their immigration regimes in line with the African Union 2063 vision.  Many South Africans have taken advantages presented by globalisation and have migrated to various developing and developed countries. More of these South Africans can contribute to achieving national priority goals than is the case presently.  SA has become a global player in certain areas of the sciences and arts, such as astronomy and film-making.  The rate at which the global economy is being driven by scientific and technological change is accelerating, as is the impact of climate change. This requires capable states that manage international migration strategically to maximise its benefits and minimise its risks.
  16. 16. This gazette is also available free online at 30   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 15 These developments necessitate that SA reviews the current international migration policy in line with the above developments as well as in line with the new macro policy frameworks. SA has adopted the National Development Plan (NDP) as an overarching policy framework for all national policies and legislation. The NDP essentially argues that, if we are to end poverty and create decent work we must use migration to break these patterns by growing our skills and knowledge base and by removing barriers to regional development. This requires SA to invest strategically in the further development of an efficient and secure immigration system. Vision for a new international migration policy in SA Introduction The Green Paper contends that it is neither desirable nor possible to stop or slow down international migration. What is argued is that international migration in general is beneficial if it is managed in a way that is efficient, secure and respectful of human rights. International migration is part of what makes us human: we are by nature mobile and move in search of safety or opportunities. We are also social beings and build complex societies that have rules defining who can belong or visit and under what conditions. Managing international migration in the interests of states or nations is not a new idea. As states developed, these were codified into laws and the earliest legal texts concern the right and duties of citizens4 and treaties governing relationships between states. All nations today are a product of historical migration flows that were partly influenced by earlier decisions taken by leaders of states. In general, nations flourished where people with different origins, skills, resources and cultures were able to live, work and trade peacefully. Vision and Key principles Proposed vision: South Africans embrace international migration for development while guarding sovereignty, peace and security 4 The Code of Ur-Nammu is at least 4000 years old and deals with the rights of Sumerian citizens.
  17. 17. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   31 16 What SA urgently needs in a highly connected world is a robust, progressive vision of the benefits of well-managed international migration. This vision must be based on the crucial contribution inward and outward migration makes and will make to growing our economy and to the transformation of Africa. The deep historical roots that must nourish this vision include the following:  Our commitment to the values of humanism and internationalism through our struggle for human worth and dignity  Our commitment to overcoming the legacy of colonialism and building a prosperous, peaceful and united Africa  Building a nation of active citizens of SA, Africa and the world. The new vision will be underpinned by sound principles of international migration which are briefly discussed below. Constitutional principles: The following Constitutional principles frame the vision and must be understood in context and in the spirit of the Constitution in order to enable the country to manage international migration strategically and securely:  The duty of the state and every citizen to defend our sovereignty, the security of the state and the integrity of our society;  Equal respect for human rights for all;  All who live in SA have to respect the laws;  The obligation to honour the international commitments of the Republic;  The right every citizen has to choose their trade, occupation or profession freely;  Citizens have the right to international travel if they comply with relevant laws;  The right everyone has to freedom of movement within SA;  Development to realise the potential of every citizen and to ensure redress and equity;  Striving for global peace, security and a better life for all humankind. Principles that define our approach to international migration 1. SA has a sovereign right to manage international migration in its national interests:  The national interests of SA should be defined in accordance with o The principles underpinning the Constitution; o National priorities such as national security and development; o Promotion of human rights, peace and stability in order for South Africans to live in a secure, stable and prosperous world.
  18. 18. This gazette is also available free online at 32   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 17 2. SA’s international migration policy must be oriented towards Africa:  SA can play an important part in making regional economic integration happen and in the unification of post-colonial Africa. No country can maintain a stable development trajectory that is independent of the region in which it is located. Our future lies, together with others, in being part of the African continent that has a knowledge- driven industrial base, thriving trade and a free flow of people, goods, information and capital. In this regard it is important to note three significant developments that have implications for future international migration Africa. These are: the adoption of the AU Agenda 2063 by the Heads of States and Governments in June 2015; establishment of the Continental Free Trade Area (CFTA); and negotiations for a continent-wide visa free regime. 3. SA’s international migration policy must contribute to nation building and social cohesion:  One of the purposes of a migration policy is to determine which foreigners can become part of the community of SA people either on a temporary or on a permanent basis. In doing so, the migration policy shapes the future composition of the South African population. A diverse nation can build its knowledge base by attracting leading thinkers; release the creative potential of many cultures; and find new synergies. This gives it a critical advantage in world economy that is knowledge- driven and highly connected. 4. SA’s international migration policy must enable South Africans living abroad to contribute to national development priorities.  Like many other developing countries, SA loses a significant proportion of its skilled workforce every year. This has both negative and positive consequences that must be managed. South Africans who have migrated to other countries can be a source of development in terms of skills, capital and connections. Countries that are confronted with a similar challenge have established various institutional mechanisms for engaging with their respective diasporas. 5. The efficient and secure management of international migration is the responsibility of individual countries, all countries collectively as well as regional structures:  On the domestic level, the policy should make explicit the principles that indicate the rights and responsibilities of the state, civil society, individual citizens and foreign nationals living in SA: o The whole of the South African government and political formations; and o Civil society partners - organised labour, business, communities and immigrant communities o Informed and aware citizens and immigrants.
  19. 19. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   33 18  On the international level migration is a complex process involving two or more sending, receiving and transit states. The policy should therefore provide a framework of principles for promoting shared responsibility for managing international migration. In this regard SA must: o Actively strengthen international efforts to promote and implement good practice and the principles of shared and collective responsibility and cooperation; o Proactively engage with relevant states and build bilateral and multi-lateral partnerships. o Ensure that this policy framework articulates with SA’s foreign policy.
  20. 20. This gazette is also available free online at 34   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 19 CHAPTER 2: EVOLUTION OF INTERNATIONAL MIGRATION POLICY IN SA Introduction In order to understand the challenges confronting the country in managing international migration today it is necessary to gain an understanding of its historical roots and our current policy environment. Specific historical and geographical contexts are crucial in understanding migration patterns in any country. As a nation, South Africans are the product of migration. Much of the economy was built by migrant workers who extracted raw materials, with most of the wealth going to Europe or America. This has left post-colonial states with massive structural inequalities and under-developed health and education systems. Several scholars5 have written extensively on this subject and they argue that ignoring this history would obscure its impact on SA’s immigration policy and practice; and our long-standing economic and political links with the region. Colonial and pre-1948 international migration policy South African international migration policy is based on our post-1994 Constitution and it should be understood in the context of our history and geographical location. In the colonial era the countries that now form the South African Development Community (SADC) were linked through a system of labour migration. Migration was probably the single most important factor tying together all of the various colonies and countries of the sub-continent into a single regional labour market during the twentieth century. SA has been the main destination for migrant labour on the continent since the 19th century, following the discovery of the region’s natural resources. As the supply of indigenous labour within SA was insufficient to meet the growing demand of the mines, the Chamber of Mines recruited from surrounding colonies and across Southern Africa. Even before the apartheid era, immigration policy in SA was based on racial discrimination. As illustrated above, much of the immigration policy paradigm in SA in the late 19th and the early 20th centuries was dominated by the discourse of recruiting “desirable” whites and excluding migrants from Asia and India in particular. In terms of acquiring citizens, formal 5 Peberdy, S., Crush, J. and Williams, V. (1997,1998, 1999, 2000, 2001, 2005, 2008, 2009), Maharaj, B (2004)
  21. 21. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   35 20 immigration under colonial and apartheid regimes was essentially conceived of as being for whites only. With regard to African migrants, domestic and foreign, the primary concern of apartheid and pre-1948 South African governments was to ensure colonial domination and an abundant supply of cheap migrant labour. The Immigrants Regulation Act of 1913, the first nation-wide immigration legislation passed in SA, had a major aim of excluding those Indian immigrants who had followed Indians who had entered after 1860 as indentured labourers to work in the sugar cane plantations. The growing Indian population was considered a major threat to the ideology of white supremacy. At the end of the First World War, SA was the destination for a rapidly increasing number of European immigrants, often from Eastern Europe. Many were Jewish or Catholic and poor – all characteristics considered undesirable on political and racial grounds. The Immigration Quota Act of 1930, aimed at excluding such unwanted immigrants, also established the concept of discriminating between immigrants who were ‘desirable’ and ‘undesirable’. The Aliens Act of 1937 left the door open for migrants with ‘desirable’ characteristics. Until recently, all immigration legislation since this Act has been influenced by the principles laid down in 1937, including use of the term “alien” to describe those who were not South African nationals or British citizens. Apartheid international migration policy Under apartheid, immigration control manifested chiefly in tight border security and restrictions on Africans considered politically undesirable and others entering the country; and on Africans travelling abroad. Ports of entry were under the control of police directed by an intelligence unit until 1992 when immigration officers were introduced. The fragmented departments of “Home Affairs” (variously named) were responsible both for general control via the pass laws as well as delivering modern services largely to whites. The apartheid government encouraged or turned a blind eye to clandestine migration in order to ensure an abundant supply of cheap labour, but was opposed to black migrants applying for citizenship. The Aliens Control Act of 1991 was based on a 1913 Act that excluded blacks and was amended in 1930 and 1937 to exclude Jews. The racist orientation of South African immigration policy became very evident when the government welcomed whites from neighbouring states in Southern Africa who felt threatened by white majority rule.
  22. 22. This gazette is also available free online at 36   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 21 Between 1960 and 1980, skilled and semi-skilled white migrants from Zambia, Kenya and Zimbabwe were given citizenship to boost the local white population. Between 1913 and 1986 black people could only enter SA illegally or as contract workers as they were not allowed to apply for temporary or permanent residence permits. Historically, labour migrants were concentrated in their largest numbers in the South African mining industry. The mix of source countries varied over time. Mozambique, Lesotho, Swaziland, Botswana, Zimbabwe and Malawi were the major suppliers. All migrants were recruited by a single Industry-financed monopoly, The Employment Bureau of Africa (TEBA), which operated an extensive network of recruiting offices in supplier states. At the end of a stipulated period, migrants had to return home to renew their contracts. Post-1994 international migration policy From 1994, the vision of SA’s first democratic government was to reverse racially-based and exploitative laws, and integrate SA into the SADC region, the African continent and the world. The transition to democracy has enabled SA to play a full and active role in the family of nations. This is one of the fruits of a struggle in which the mobilisation of international support played a critical role. International migration was a key factor in SA’s relatively high level of economic growth until the global economic crises of 2007/8. The struggle against colonialism has deep roots in humanism and internationalism which found expression in the Freedom Charter and in our Constitution. The Constitution does not mention immigration, leaving specific immigration policy decisions to democratic processes. However, the Constitution lays down certain relevant principles. The right of the South African people to self-determination and sovereignty is fundamental and this includes the right to security and control of our resources. Other basic principles that have migration policy implications are respect for human rights, the honouring of international agreements and the promotion of peace, security and prosperity for all peoples. SA has undergone a protracted process of developing policy and legislation on migration and refugees since 1994. This process has included the drafting of a Green Paper on International Migration in 1997, a White Paper on International Migration accompanied by a Draft Immigration Bill, and the adoption of the first comprehensive Immigration Act in 2002, which has subsequently been amended. A Refugees Act was also legislated in 1998, and
  23. 23. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   37 22 amendments to this Act are currently underway. The discussion below highlights key areas of these documents and legislation. Since 1994 several million South Africans have used their new passports to visit, study, work and to do business abroad. Tourists and skilled migrants have helped grow our economy and knowledge base. Even so, while the international migration policy framework was formally deracialised, the 1999 White Paper has in part a colonial outlook. For instance, the White Paper argues that technically, the migration policies of the old SA could be applied if adapted to comply fully with the Constitution and the administrative practices developed under it. This would in theory ensure that they do not unfairly discriminate against certain foreigners on the basis of origin, ethnicity or religion. In essence, however, the current policy framework is based on rules that in practice disadvantage Africans and favour immigrants from Europe and other developed regions over African countries. Amendment of the Aliens Control Act No. 96 of 1991 The first migration policy reform came in 1995, with a statutory amendment to the Aliens Control Act No. 96 of 1991. It was Parliament’s intention to bring the Act more in line with the country’s new constitution. Before being amended in 1995, Section 55 of the Act provided that no decision of the DHA was reviewable by a court or tribunal, and persons could be held in detention indefinitely, without judicial review. The 1995 Amendment removed this provision and provided that detention for periods beyond thirty days ought to be subject to review. In short, despite the reforms, there were still concerns that the Aliens Control Act fell far short of constitutional expectations. Clearly, more comprehensive reforms were and are necessary. Green Paper on International Migration In May of 1997, SA published a Green Paper on International Migration. Underscoring the Green Paper were the dual principles that a planned and efficient system of immigration would be in SA’s national interest and that unauthorised migration is undesirable. The Green Paper suggested that planned immigration would create opportunities for economic growth and development, and as such could be viewed as a potential tool for nation-building, rather than an impediment. It further argued, however, that realising the benefits of immigration
  24. 24. This gazette is also available free online at 38   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 23 would require a broader vision of the role of population movements in economic growth, and that the implementation of such a vision would require a simple, achievable and manageable plan of action. The Green Paper also maintained that as a sovereign state, SA would reserve the right to determine who would be allowed entry into the country, and under what conditions. At the same time, the Green Paper proposed that the design and implementation of immigration policy should be faithful to the 1996 Constitution, and should be consistent with the national commitments to upholding universal human rights, administrative justice, and the guarantee of certain basic rights for all people affected by the South African state. White Paper on International Migration The White Paper on International Migration was published in March 1999 and its Executive Summary provides an overview of its focus, contents and recommendations, as follows: In this White Paper administrative and policy emphasis is shifted from border control to community and workplace inspection with the participation of communities and the cooperation of other branches and spheres of government. Procedures related to the issuance of permits are simplified to shift resources towards enforcement. An Immigration Service would be established with monitoring and investigative capacity at community level and there would be an Immigration Review Board drawn from different sectors. The basic shortcoming of the White paper is discussed above in Chapter 1. In summary, it adopts an approach that is not aligned to SA’s historical and geographical realities; or to using international migration strategically to achieve development goals. The approach is also one of mechanical compliance to requirements rather than ensuring national security through the management of risks. Lastly, it assumes immigration is a routine function that falls mainly under Home Affairs rather than adopting a ‘whole of the state and society’ approach. This contributed to the classification by National Treasury of Home Affairs as a general administrative department that does not need to operate in a highly secure environment. The White Paper did advocate establishing an immigration service and the Immigration Services (IMS) branch of the DHA was duly established; but it only receives a budget sufficient for routine administration, with limited funding for enforcement of immigration legislation.
  25. 25. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   39 24 Immigration Act No 13 of 2002 The Immigration Act (Act 13 of 2002) was legislated following the tabling of the White Paper on International Migration (1999) and the Immigration Bill (2001). The Act represented a significant policy and legislative departure from the Alien’s Control Act of 1991, namely the previous statute governing the entry, residence and departure of foreign nationals in SA. The Preamble of the Act emphasised a number of principles, including: simplified requirements and procedures, and the expeditious issuing of residence permits; security and state control over immigration; inter-departmental coordination; cognisance of globalisation and GATS; strengthening border monitoring and deterring illegal immigration; efficiently managing and administering border posts; efficiently and effectively enforcing immigration law, “thereby reducing the pull factors of illegal immigration”; accessing scarce skills, while protecting South African workers; maintaining a policy connection between foreigner workers and the training of citizens; addressing migration issues with other states; ensuring human rights protection in immigration control; and preventing and countering xenophobia within government and civil society. South African refugee policy and legislation Refugee White Paper, 1998 The Refugee White Paper was developed in 1998 as a first step towards developing a system of protection for refugees and asylum-seekers, following South Africa’s ratifying of the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol, and the 1996 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. The White Paper also included a Draft Refugee Bill which, following amendments was adopted and legislated as the Refugees Act (Act 130 of 1998), later in the same year. Cognisant of the obligations imposed by international instruments, the White Paper defines the conditions of eligibility for refugee status in SA, as well as conditions for exclusion from this status. The White Paper also outlines a number of principles guiding the treatment of refugees in SA, including: the international principle of non-refoulement6 ; non-prosecution on the basis of illegal entry into the country; non-deportation, except where there is a threat to 6 Refoulement essentially refers to returning a person to a place where his/her life would be threatened.
  26. 26. This gazette is also available free online at 40   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 25 national security or the public order; basic security rights; basic human dignity rights; and, basic self-sufficiency rights, including the rights to work and education. The White Paper also outlines the conditions of residence for persons granted refugee status, placing emphasis on the creation of an “enabling” environment for self-sufficiency through access to identity and travel documents, the rights to work and study, as well as a speedy determination process. In the event of a mass influx of refugees, the White Paper recommends that the Minister be empowered to determine refugee status on a group basis, and make regulations related to accommodation and treatment of refugees in these circumstances. Refugees Act No 130 of 1998 Following on the Refugee White Paper and Refugee Bill, the Refugee Act was adopted in 1998 with the main aims of giving effect to international instruments, providing for the reception of asylum seekers, establishing conditions for the refugee application and determination processes, and defining rights and conditions of residence for refugees in SA. Consistent with the White Paper, the Act outlines circumstances under which an applicant may qualify for refugee status, or be specifically excluded. The Act also provides for the establishment of a Refugee Reception Office staffed by refugee reception officers and refugee status determination officers. The Act also provides for the establishment of both a Standing Committee for Refugee Affairs and a Refugee Appeal Board, and provides specific guidance on the composition, powers, duties, and conditions of office of members of both bodies. The Act came into force in 2000 after the adoption of the Refugee Regulations.
  27. 27. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   41 26 CHAPTER 3: STATISTICAL PROFILES OF INTERNATIONAL MIGRANTS Introduction International population movements are complex to measure, as they are influenced by a variety of socioeconomic, political, environmental and other factors. There are, in fact, no official figures available on the total number of foreign residents in SA other than projections based on census data. Figures from the 2011 Census suggest that 3.3% or about 1.7 million of the country’s 51.7 million population are foreign-born. According to AfricaCheck, data collated by the World Bank and the UN, suggests a migrant population of about 1.86 million people. The IOM estimates that the total migrant population (legal and irregular) rose from 2% of population in 2000 to over 5, 5% in 2015, which aligns with the census projections. SA continues to attract a high volume of various categories of international visitors and migrants from almost all regions of the world. For instance, in 2011 more than 12 million arrivals of foreign nationals were recorded on the Movement Control System (MCS). This figure increased to 15 million in 2014. More than 90% of the movements involve SADC nationals, with those living in border towns making frequent crossings. For more details, please refer to Table 1 below: Table 1: Trends on international movements through the POE 2011 % total arrivals 2011 2012 % 2013 % 2014 % 31 Aug 2015 % total arrivals (2015) Lesotho 3231147 26% 3159037 24% 3179290 22% 3192012 21% 2276815 22% Zimbabwe 2400421 19% 2947721 22% 3486327 24% 3599136 23% 2241543 22% Mozambique 1564316 13% 1732197 13% 1980892 13% 2133012 14% 1385464 14% Swaziland 1120876 9% 1232634 9% 1413618 10% 1602200 10% 1117444 11% Botswana 659269 5% 683747 5% 863321 6% 989935 6% 691789 7% UK 515160 4% 504714 4% 504483 3% 517505 3% 338003 3% USA 314583 3% 328557 2% 353100 2% 371964 2% 239491 2% Germany 254294 2% 268247 2% 289744 2% 314233 2% 174913 2% Zambia 177830 1% 180497 1% 193290 1% 200791 1% 126595 1% Namibia 177495 1% 223807 2% 258829 2% 272281 2% 184474 2% Malawi 152217 1% 154/918 1% 189329 1% 186868 1% 104482 1% Netherlands 126573 1% 127535 1% 131221 1% 150575 1% 88596 1% France 117325 1% 125385 1% 133037 1% 154700 1% 97130 1% Australia 114564 1% 120152 1% 121664 1% 127129 1% 72653 1% India 110188 1% 120567 1% 131774 1% 124450 1% 82200 1% China 97689 1% 119096 1% 139228 1% 112727 1% 69044 1% Nigeria 65554 1% 61298 0% 82490 1% 64051 0% 36385 0% Italy 64859 1% 65728 0% 69037 0% 74761 0% 44057 0% Canada 64222 1% 68104 1% 70512 0% 70881 0% 41291 0% Portugal 63273 1% 68447 1% 68232 0% 66857 0% 43765 0% Arrivals (top 20) 11391855 92% 12292388 92% 13659418 93% 14326068 93% 9456134 93% Total arrivals 12370534 100% 13314243 100% 14758649 100% 15427689 100% 10129763 100%
  28. 28. This gazette is also available free online at 42   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 27 Over the years, there have been significant shifts in the sectors where migrants are employed from primary sectors such as mining and farming. Notions that we are being overwhelmed by immigrants are wrong. An analysis of data from the 2012 Quarterly Labour Force Survey shows that South Africans make up over 90% of those employed in every sector, including in self-employment. Migrants tend to be concentrated in self-employment (30%), followed by services and construction (both 12%) and domestic work (11%). Table 2: Employment of migrants by sector Sector Distribution of migrants (%) Migrants as % of total South Africans as % of total Trade 30 8 92 Services 12 3 97 Construction 12 9 91 Private households 11 8 92 Manufacturing 10 5 95 Financial 10 5 95 Agriculture 6 7 93 Transport 4 4 96 Mining 3 8 92 Source: Budlender (2014) Visa and permitting regime Between 2010 and 2013, over 91,000 applications for work-related temporary residence visas were received. General work visa applications accounted for over 55% of work related temporary residence visas whilst intra company transfers (section 19 (5) work visas) accounted for 18%. Corporate work visa applications were the lowest at 3.6%. There were more intra company transfers as compared to quota work permits and corporate permits. In terms of country of origin, China accounted for the highest number of applications followed by Zimbabwe, India, Pakistan and Nigeria. These top 5 countries constituted over 65% of applications between 2010 and 2013. The top 15 countries account for 81% of all applications. This would seem to suggest that SA is attracting international migrants from a relatively small group of countries out of over 200 countries that constitute the global community.
  29. 29. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   43 28 The statistics on of all other visas that were issued by the DHA between June 2014 and January 2016 provides another view of the foreign national population. A total of 124,453 temporary residence visa applications were received. Importantly, 24% were family related; in other words, relative’s visas. Nationals from Bangladesh, Nigeria, and Pakistan were the most likely to apply for such visas. Applications for relative’s visas were followed by applications for study visas and visitor’s visas which made up 18% and 14% of all applications for temporary residence visas received. Nationals from Zimbabwe (20%), followed by those from Nigeria (15%), DRC (9%) and Angola (6%) accounted for half of the study visa applications. Permanent residence Permits Some categories of international migrants apply for the largest proportion of permanent residence permits. For instance, between 2010 and 2013 there were over 6,400 applications for permanent residence under section 26(a) of the Immigration Act. These applications are in respect of foreign nationals who have been holders of general or corporate work permits for more than five years. The highest number of applications for permanent residence was from Zimbabwean nationals followed by foreign nationals from China, India, Nigeria and Pakistan. The top five countries accounted for 68% of all applications whilst the top 15 accounted for 84%. This suggests that permanent residency and citizenship are, to a large extent, granted to international migrants with relatively low levels of skills and little capital. Data for the 2014/2015 and 2015/16 financial years (to mid-January 2016) shows that permanent residence applications on the basis of being a spouse totalled 9,975 of all applications received (30,098 applications) and represented 33% of all permanent residence applications. Applications on the basis of being a dependant and a relative accounted for 26%. These figures would seem to indicate that relationships form the basis of the majority of applications (59%) for permanent residence in the Republic. For more details, please refer to Table 3 below:
  30. 30. This gazette is also available free online at 44   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 29 Table 3: Applications for Permanent Residence Permits Source: VFS System (16 June 2014 – 14 Jan 2016) During the 2014/15 financial year, 1,955 applications for Permanent Residence based on marriage grounds were referred to Central Law Enforcement (Inspectorate). A total of 1,838 investigations into such applications were finalised. Based on the outcome of the finalised investigations, 74% of these applications (1,362) were recommended for rejection on the basis that the marriages were found to be fraudulent, whereas 26% (476 applications) were recommended for approval. These figures highlight the need to strengthen the Inspectorate capacity and ensure that sufficient checks are conducted prior to the granting of visas and permits based on relationships, as there is a trend of misusing this visa and permit category. Refugee regime SA continues to receive a high volume of asylum seekers, over 90% of whom do not qualify for refugee status. When the Refugees Act was enacted in 1998, the numbers of asylum applicants were very low; with about 11000 people applying for asylum in 1998. This number has ballooned over the years due to various ‘pull’ and ‘push’ factors. In 2013, a total of 70 010 new applications for asylum were recorded, whereas this number increased Permanent Residence Category Total applications % 26(b)Spouse 9975 33% 26(a)Worker 5799 19% 26(c)Dependent(21) 5271 18% 27(g)Relative 2298 8% 27(b)Extra Ordinary Skills 2175 7% 27(d)Refugee 1115 4% 27(e)Retired 953 3% 27(C)Business 875 3% 26(d)Dependent(21) 621 2% 27(a)Worker 520 2% 27(f)Financially Independent 249 1% 26(c)Dependent(18) 156 1% 26(d)Dependent(18) 91 0% Grand Total 30098 100%
  31. 31. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   45 30 marginally in 2014, when a total of 71 914 new applicants were registered. There are about 15 African countries that account for 71% of applications that were received in 2015. Table 4 below provides more details. Table 4: Top 15 African countries of origin asylum seekers Country numbers Zimbabwe 20,405 Ethiopia 10,176 DRC 8,029 Nigeria 7,431 Bangladesh 5,110 Somalia 2,595 Pakistan 2,460 Malawi 2,310 Ghana 2,271 India 1,781 Congo Republic 1,485 Lesotho 1,437 Mozambique 1,220 Uganda 7,53 Burundi 678 NIIS 31 January 2016 In May 2015 the Department undertook an analysis of the National Immigration Information System (NIIS) which records data on asylum seekers and refugees. The analysis showed that 1 061 812 Section 22 permits (asylum seeker temporary permits) had been issued to asylum seekers. Most of these permits were not active (983,473) with only 78,339 still active. The analysis also showed that 119,600 Section 24 permits (formal recognition of refugee status permits) had been issued to refugees. Most of the refugee permits were active; that is, 96,971 were still active while 22,629 permits had expired. The expiration of these permits could be explained by the fact that refugees might have moved onto an immigration permit (permanent residence, for instance) and have allowed their refugee permits to lapse. It could also indicate that the asylum process might be a stepping stone to obtaining other immigration visas or to use SA as a transit country.
  32. 32. This gazette is also available free online at 46   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 31 Irregular migration and deportation SA is also confronted with the challenge of a high level of irregular migration, included meeting the high cost of deportations. The majority of irregular migrants come from neighbouring countries. For instance, of the total number of migrants that were deported in the 2014/15 financial year, nationals from Mozambique, Zimbabwe and Lesotho made up 82% of those deportations, whilst in the current financial year (to date), they account for 83% of all deportations. The above statistics confirm the need to find a solution for the documentation of migrants from SADC with lower-level skills since they account for a large proportion of the yearly deportations conducted by the Department. This puts a large strain on the budget of the DHA. Whilst conclusive data is not available on whether these deportations amount to ‘revolving door’ movements (i.e. the same person being deported several times in a year) there are strong indications that this is the case. Conclusion One of the capacity gaps discussed in Chapter 5 is the lack of the systematic research and the collection of statistics related to international migration and migration in general. This limits knowledge and analysis that could inform policy and strategy and help identify risks and opportunities. Socio-economic and geographic data on immigrant communities and data on countries of origin is one priority area in this regard. Another is analysis of trends in migration in terms of local, regional and global labour demand and supply.
  33. 33. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   47 32 CHAPTER 4: POLICY AND STRATEGIC OPTIONS Introduction There are specific areas of international migration that represent serious challenges at the levels of policy, strategy and implementation. In the sections that follow, the policies and strategies that are suggested and the formulation of options are guided by the principles set out in Chapter 1 under “Vision for a new international migration policy in SA”. In each policy area a situational analysis is undertaken. This in turn informs the policy and strategic options that are put forward. In developing these options a clause-by clause analysis of the Immigration and Refugees Acts was undertaken to determine the adequacy of the legislation in addressing the challenges. Furthermore, the experiences of officials in administering the Acts were also taken into account, as well as engagements with other departments and with a range of thought-leaders and stakeholders. Management of admissions and departures Situational analysis This section seeks to address policy gaps that compromise the secure and efficient facilitation of the movement of persons, goods and conveyances. The management of arrivals and departures goes beyond South African borders; that is, the journey of a traveller does not start or end at a POE. It starts when a person applies for a travel document, then makes a travel reservation and boards a conveyance en route to his or her final destination. Each of these choices, including the travel route, provides information about the traveller, which enables receiving states to form a picture of the identity and intention of the traveller. Being faced with an ever-increasing number of travellers, the balance between efficient and effective traveller facilitation and security considerations becomes critical. . In the 2014- 2015 financial year, DHA recorded 39, 5 million movements (citizens and foreign nationals) across the country's borders. SA has a large number of service points internationally and domestically for facilitating secure and efficient movement of persons, goods and conveyances. Internationally, SA has a presence in 124 missions though only 30 missions are currently serviced directly by the DHA7 . There are 71 places designated as POE in SA. 7 At other missions DIRCO consular officials carry out Home Affairs functions on behalf of the DHA
  34. 34. This gazette is also available free online at 48   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 33 The DHA plays a leading role in the management of the border environment because of its mandate to regulate and facilitate the movement of persons through POEs and the issuing of passports and visas to citizens and foreign nationals. Other important role players are the SANDF, which has the primary responsibility for securing the borderline; SARS which regulates the movement of goods and money; the SAPS which combats crime; and the departments of Transport, Health and Agriculture, Forestry and Fisheries which regulate entry and exit according to their respective mandates. Within the framework of the Constitution and legislation the state has to safeguard territorial integrity and ensure that there is security and public safety for the people of SA. The human rights provisions in the Constitution and legislation must also be observed at all times. South African citizens have a right to travel and return; and only the DHA has the authority to approve or deny entry or exit to foreign nationals. Internationally, border security is a shared responsibility and SA has entered into a wide range of international, regional and bilateral agreements that it is constitutionally bound to honour. SA has well-developed infrastructure, communication systems and international transport hubs which enables international travel. The broad policy objectives are to ensure security and public safety while efficiently and strategically facilitating the movement of legitimate persons, conveyances and goods in support of national goals. The key issues discussed below have much to do with the capacity of the state and specific policies aimed at delivering against this mandate in the context of a globalised world, African development and a post- colonial region characterised by highly uneven development. Proposed and/or on-going interventions Adoption of a Risk-Based approach At the heart of efficient and secure traveller facilitation is traveller identification management where travel documents accepted for border integrity purposes underpin the ideals of safety and security. The importance of secure travel documents to international security cannot be overstated. Travel documents are, however, only as secure as the identification-related systems behind their production, issuance, control and inspection. Technology and process innovations (biometric verification) are required to achieve effective and efficient security and facilitation measures; and as enablers of future security screening regimes.
  35. 35. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   49 34 In order to facilitate movement whilst ensuring that security considerations are satisfied, the DHA must follow a layered approach in order to manage risk. The key methodology and international best practice for managing immigration risks, is to build a complete history of the visits of all those who visit SA. This should be linked to effective screening of visitors to the RSA before they leave their country of origin or enter South Africa. Currently, the people and systems needed to apply this methodology are only partly in place with gaps in capacity and systems that create risks. Apart from the quantum and quality of staff and management, there is a lack of integrated systems and a security envelope protecting people, facilities and systems from active threats such as criminal syndicates. The importance of adequately applying a risk methodology is to ensure that persons travelling to the country can be identified and connected to an official record before arriving in the country. This enables the testing of the credibility of travel documentation, personal identity; and allows for the running background checks on any the possible listings against national or international stop-lists. The risk-based approach ensures that undesirable persons are prevented from travelling to SA at source countries; i.e. a process known as externalising the borders. This is accomplished ideally through screening for visa issuance at a mission abroad, followed by Airline Liaison Officers (ALOs) document inspection at the foreign airport. Advance Passenger Processing (APP) clearance and airline document inspection is already carried out; but the budget of the DHA does not allow the maintenance of airline liaison offices at high-risk airports abroad.8 The Department should be empowered to access the magnitude of data available in the travel industry for use in risk and threat assessment and should continue to hold conveyors accountable for performing document checks prior to conveying passengers to a POE in accordance with the international regulatory frameworks. The risk-based approach does not imply that deterring irregular movement and facilitating the movement of legitimate travellers in order to promote trade and tourism are mutually exclusive. In fact, once their risk and threat profiles have been confirmed to be low, bona fide tourists, academics and business people can be granted a long-term multiple entry visa. This could include self-service immigration clearance through automated gates whilst border control personnel focus their attention on those with higher risk profiles. Security and efficiency can be complementary if the approach is right and resources are adequate. 8 During the 2010 Soccer World Cup the DHA made effective use of temporary airline liaison officers.
  36. 36. This gazette is also available free online at 50   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 35 Establishment of a Border Management Authority In response to the situation described above, the Government of SA has acknowledged that the circumstances of modern travel and trade require a single agency to be responsible for POE and the borderline of the Republic and to balance facilitation of legitimate trade and travel with security. Hence, in 2009, during the State of the Nation Address, President Zuma announced that SA would start the process of setting up a Border Management Authority (BMA). In 2013 Cabinet confirmed the establishment of the BMA in SA and, in 2014, Cabinet decided that DHA should be the lead agency for the BMA. Cabinet also resolved that the scope of the BMA will be POE as well as the borderline. The rationale for BMA establishment is to create an operational balance between security, trade facilitation, tourism promotion and socio-economic development both within SA and the SADC region. It will provide for an integrated border control under the BMA with officials having a strong common identity while rigorously carrying out the mandates of their respective area, such as health or customs. The authority will be equipped with the necessary skills and knowledge in law enforcement, and the core functions of the relevant departments, to ensure the efficient and humane delivery of secure services. The intention is to establish the authority formally by March 2017. Rationalisation and designation of POE It is important to note that the mandate of the Minister of Home Affairs in the Immigration Act, 2002 relates to the designation of a place as a POE for persons to enter and depart from the country whilst other State entities have similar mandates relating to their spheres of control. For instance, the Commissioner of SARS is mandated by the Customs and Excise accepted chnageAct, 1964 (Act No. 91 of 1964) to appoint or prescribe places to be places of entry for the RSA for commercial purposes (importing and exporting of goods). The International Health Regulations Act, 1974 (act No. 28 of 1974) provides for the designation of any part in the RSA as an approved port. Therefore, any request for the designation of a POE is dealt with ultimately as a collective decision by the Cabinet. However, there is a need for the alignment of processes for the declaration of POE. There is also a need for a provision that would enable the Minister to determine and specify areas within a POE where a person shall present himself or herself for examination by an immigration officer. This is
  37. 37. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   51 36 needed especially at some of the maritime ports where there are various terminals and at some land POE where passenger segmentation is applied, e.g. pedestrians, truck drivers, etc. Various Ministers of Home Affairs have indicated that the current number of POE should be reviewed in order to improve the management of the remaining ports as well as the associated risk. The high number (71) is mainly a legacy of the police under apartheid setting up posts to stop infiltration of cadres by the liberation movement. To date, such a rationalisation process has only taken place in the airports environment when during the early 1990s the number of international airports was reduced from 38 to 10. More recently, a study was conducted to establish a scientific method to support decisions regarding the opening / closing of a POE, using Multi-Criteria Decision Analysis (MCDA) methodology. While the Immigration Act (2002) mandates the Minister of Home Affairs to designate POE, it is silent on the criteria or condition that must be met before a POE could be officially opened by the Minister. One of the preconditions could be that, at maritime and rail POE, the legislation should compel the landlord of the port to provide facilities and infrastructure for the immigration officials to exercise their mandate, based on set standards, similar to what is in place in the aviation environment. In order to be able to rationalise the number of POE in a justifiable manner and deal with new requests for the creation of POE and community border crossings, criteria should be defined as to when a place may be designated as a POE; or an existing POE be closed or reduced in size or prominence (e.g. from commercial to non-commercial). Criteria could include economic factors, trade, the needs of the community, traffic volumes and levels of cross- border crime and or corruption. Creative options must be considered, but in the end difficult decisions will have to be made on economic and security grounds after due consultation domestically and with the applicable neighbouring country. Maritime POE Policy areas that require attention in the sphere of the maritime POE are Off-Port Limits (OPL) and stowaways. Ships unable or unwilling to enter harbours in RSA moor the vessels offshore within 12 nautical miles. These operations include boarding from either a small boat (called a launch) or helicopter to perform crew changes or load supplies on a ship that is transiting and not berthing in the harbour. These operations are not regulated by legislation
  38. 38. This gazette is also available free online at 52   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 37 and are being exploited by conveyors to save money at the expense of security and what is referred to as the untapped “economy of the sea”. A clear definition of stowaways is needed in line with the international regulatory framework as well as appropriate punitive measures for those who stow away or attempt to do so at our harbours on ships destined for foreign shores. However, this phenomenon is not only limited to the maritime environment, it is prevalent in the land border environment as well. Exploitation of the practice also occurs in that the shipping agent pays the fare for a flight to the country of origin as well as compensation fee in order to buy clothes, etc. This can lead to persistent offenders who should be dealt with. Land POE Establishment of One-Stop Border Posts The main objective of one-stop border posts is to enhance trade facilitation, without compromising national security or revenue collection. The implementation of the one-stop concept requires that the border agencies of each state involved are able to apply their national laws in the territory of the adjoining state. As national laws cannot automatically be applied in other territories, specific provisions should be developed to give such agencies extra-territorial jurisdiction. A study has been commissioned on the establishment of a One-Stop Border Post (OSBP) in SA. The concept of an OSBP is being piloted at the Lebombo / Ressano Garcia POE between SA and Mozambique. Operationalisation of an OSBP entails the joint inspection of South African and foreign border control authorities of travellers, goods and conveyances in order to eliminate duplication of effort by the customer concerned. The concept implies that either or both of the countries’ authorities must operate in the territory of the other. The principle of extra-territorial jurisdiction (i.e. exercising of the law outside the borders of the State) is already encapsulated in the BMA Bill. Future international migration policy should reinforce and strengthen this concept, which may be applied not only between SA and its neighbouring states, but also in any other country that dispatches uninterrupted flights to SA. Lesotho might be an ideal candidate for this scenario in view of the fact that it is land-locked within SA and all traffic to and from that country must necessarily transit SA.
  39. 39. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   53 38 As a pre-requisite for being functional and sustainable, one-stop border posts must be rooted in sound policy and underpinned by an enabling legal framework, solid international agreements, compatible systems and a feasible implementation strategy. Pre-Clearance of persons In order to enforce port of entry security, there is a need to strengthen the regulatory framework to empower the BMA to perform basic document checks of travellers at the perimeter of the POE, similar to the manner in which airlines check documents before a person is allowed into the secure area of an airport. Systems and infrastructure should be adequate for efficient facilitation while ensuring that there is adequate pre-screening of travellers. There must be provision for holding facilities when there is a need for additional checks and for quarantine. The drive for efficiency to achieve economic goals is important but these same goals will be undermined and create serious risks for South Africans if there is weak national security. Regulation of community border crossings According to section 9 (1) of the Immigration Act No. 13. of 2002 “no person shall enter or depart from the Republic at a place other than a port of entry”. However, there are several informal border crossings along the South African border that are not designated by the Minister and are not managed by Immigration officers as required by the Act. Most of these informal border crossings are a colonial legacy that left divided communities along the borderline. They are often associated with markets and other forms of local trade; or with communities on either side of the border making use of the nearest facilities, such as schools. The challenge in the RSA is that informal border crossings are not managed and as a result they are being exploited by syndicates who use them to traffic and smuggle persons and goods. Other countries have adopted controls that allow for the movement of community members who reside along the borderline while managing the risks involved. The Department has initiated a study on communities along the borderline, in part to understand the nature of movements and challenges experienced by such communities. The concept has been piloted at the border with Botswana during 2015 with the opening of the Tshidilamolomo border crossing, where cross-border movements of members of the local
  40. 40. This gazette is also available free online at 54   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 39 community are facilitated through pre-registration and biometric verification upon each movement. The challenge of mass illegal migration Enforcement of the Immigration Act requires that persons who have entered or remain in the country illegally either to return voluntarily to their countries or to be deported. In 2014- 2015 a total of 54, 169 persons were deported, out of which 44,536 (82%) of deportees were from three neighbouring countries: Mozambique (19, 562), Zimbabwe (13, 962) and Lesotho (11, 012). The socio-economic realities that drive this situation will continue until there is less disparity between the economy of SA and the rest of SADC. In the medium term a key policy objective is to put in place a border management system that responds to the development and security needs of SA and its neighbours. The following strategic interventions are underway. a. Establishment of a Border Management Authority; b. Promotion of the development of reliable population registers in SADC; c. Special dispensations to regularise the stay of nationals from certain neighbouring countries for a specified period and thereafter regulate according to a standard Immigration Act regime; d. Introduction of biometrics at ports of entry, linked to a trusted traveler programmes; e. Regulation of community border crossings; and f. Deepening of bilateral cooperation through bilateral commissions and other mechanisms. Management of residency and naturalisation Situational analysis In many countries the granting of residency or citizenship to foreigners is taken very seriously as either status is valued highly and is understood in relation to national values, rights and responsibilities, development goals and nation building. Factors taken into account when granting the status typically include the ability of the immigrant to function appropriately in their host societies and a sound assessment of actual and potential risks and benefits. In SA the current approach to the granting of residency or naturalisation is mechanical and compliance-based rather than to achieve strategic goals or to build the nation. It also
  41. 41. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   55 40 undermines the value of the status of being a permanent resident or a citizen. Serious risks are not managed effectively, thus creating opportunities for the widespread abuse of the system and the granting of residence status persons who put the nation at risk. A general principle that was observed in countries such as UK, Canada and Australia is that the relationship between temporary visas and permanent residence permits and naturalisation depends on the type of temporary visa with which the recipient started. The type of temporary visa determines the trajectory to naturalisation, including the time it takes, and the conditions that can result in the change from one status to the other. There is a misconception that immigrants have a constitutional right to progress towards residency or citizenship status. A sovereign state has the prerogative to determine who enters its territory and to enact laws accordingly. States also have right to protect themselves from risks, such as the entry and stay of fugitives from justice who are linked to organised crime. In South Africa controls are weakened because there is currently a linkage between certain Temporary Residence Visas (TRV) and Permanent Residence Permits (PRP) which, provided certain conditions are met, effectively creates automatic qualification for PRPs and subsequently for citizenship. Thus one of the main criteria used to qualify for permanent residence is the period of stay in the country, irrespective of the type of visa. For instance, during the 2014/15 financial year PR applications on the basis of being a spouse accounted for one third of all PR applications received. The high demand for relative’s visas for spouses is to a significant extent due the high levels of fraudulent marriages and marriages of convenience. Refugees are also allowed to apply for permanent residence even though their status is inherently temporary. This is because refugees are expected to return to their country of origin once conditions there allow them to return safely. This should not be regarded as automatic but linked to finding durable solutions in the event of conditions changing, such as developments in the country of origin of the refugee. Conversely, the current approach does not allow the granting of residency or naturalisation to be used strategically. An example is the offer of a fast-track to permanent residence when recruiting international migrants with critical skills who could make valuable contributions to SA’s economic, social or cultural development. Provided that they meet appropriate criteria, such immigrants could be looked at as a valuable resource who could enrich our society and build our nation.
  42. 42. This gazette is also available free online at 56   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 41 Proposed and/or on-going interventions Delinking of residency from citizenship There should be no automatic progression or right to permanent residency or citizenship in law or in practice; and the granting of permanent residency and citizenship should be delinked. For reasons given above, refugees should not be allowed to apply for permanent residence on the grounds of the number of years spent in the country. Refugees may still qualify under the Immigration Act to apply for permanent residence on other grounds, such as meeting skills and investment requirements. The granting of citizenship should be considered as being exceptional. A list of those who have become citizens through naturalisation would be approved by the Minister and published periodically. Steps should be taken to ensure due weight is given to the value of the status of permanent residence and of citizenship, including the level of approval necessary. The process for awarding citizenship should ensure that rights and responsibilities are explained, understood; and ensure that the conditions attached to them are accepted by those to whom the status is conferred. It is proposed that induction or orientation programmes should be one compulsory step in the naturalisation process or the awarding of citizenship. It should be followed by a certification ceremony or the ceremony for the awarding of citizenship. The certification ceremony or the ceremony for the awarding of citizenship should be designed to impress upon on the new citizens on their rights, obligations and conditions attached to citizenship, and it should deal with issues of their integration into our society. The taking of the prescribed oath of allegiance and the induction or orientation programmes should be designed to provide new citizens with information about the history of the country in terms of its culture and norms as well as key socio-political and economic aspects. The process of granting residence and citizenship status should allow strategic and security considerations and the national priorities of SA to be taken into account. It should be noted that the 2002 Immigration Act (section 31 (2)(b)) already provides for the Minister of Home Affairs to “grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which justify such a decision”.
  43. 43. This gazette is also available free online at STAATSKOERANT, 24 JUNIE 2016 No. 40088   57 42 Management of international migrants with critical skills and capital Situational analysis The NDP predicts that migration will, in future, be driven more by skilled and better resourced people rather than those responding to economic and political instability. Skilled workers are a critical resource for industrialised and knowledge-based economies. For example, a McKinsey Global Institute (MGI) report projects that by 2020 the global economy may have 40 million fewer workers with university degrees than required. A Study undertaken by the Trade and Industrial Policy Strategies (TIPS) in 2015 found that unemployment for graduates, irrespective of field, was low (5.9% on average). Unemployment rates seem to be higher for matriculants (29%) and for those with less than 12 years of schooling (42%)9 . This shows that that the economy is desperately short of skills. To contribute to the economic transformation envisioned by the NDP, SA should have an effective regime for attracting these types of migrants to the country. The programme should be linked to building our skill and knowledge base; as well as enabling South Africa to compete for critical skills that are in high demand internationally. The current international migration policy is aimed at granting visas to those with critical skills; skills that cannot be obtained in the South African labour market; or substantial amounts of capital. The DHA publishes a list of critical skills from time to time after consultation with the Departments of Labour, Trade and Industry and Higher Education and Training. General work visas are only granted if there is no response to an advert placed in a national newspaper. Other types of work visas are for categories such as intra-company transfers and corporate visas typically used in mining and farming to recruit migrants from SADC countries. There is criticism of the system outlined above in terms of its enabling SA to compete internationally for skills because of administrative inefficiency and lack of flexibility. A broader criticism is that international experience shows that value is gained by granting visas to migrants with high level artisanal or professional qualifications and experience regardless of field. In a dynamic global economy workers or entrepreneurs with generic skills are valuable because they can respond to changing needs. A similar criticism is that the 9 ‘Graduate unemployment in South Africa: A much exaggerated problem’. Centre for Development and Enterprise. April 2013
  44. 44. This gazette is also available free online at 58   No. 40088 GOVERNMENT GAZETTE, 24 JUNE 2016 43 requirements for starting a business should be more flexible as highly skilled professionals and artisans can start SMMEs with relatively little capital and create jobs. Proposed and on-going interventions Within the limits of the current policy framework the DHA has amended legislation, regulations and processes. An example is setting up a Corporate Accounts unit to fast track the issuing of visas for high priority national projects and sectors. A partnership with a visa facilitation service has improved efficiency and security and a one-stop business centre has been opened with more to follow. The immediate family of a visa-holder is now granted work and study visas without undue delays. Graduating foreign students in certain fields can apply for work visas. All of the above measures are assisting on a small scale, but there is an urgent need to make larger changes in approach, capacity and regulations in order to address the serious skills gaps that are holding back development, training and job creation. Establishing an inter-departmental capacity SA can learn from countries as they have established effective systems and institutions for making strategic decisions based on national interests and for competing in the global skills market. Typically, an inter-departmental commission in countries such as Brazil and Canada facilitates implementation of proactive recruitment approaches and publishes a list of skills that are required based on national and sectoral priorities, strategies and plans. There are elements of such systems in SA but they are limited and fragmented. For instance, a skills planning institutional mechanism is being established by the Department of Higher Education and Training (DHET). One component is a research project called “Labour Market Intelligence Project (LMIP)”. The Sector Education and Training Bodies are also mandated to plan for skills provision in their respective sectors. The Human Resource Development Council of South Africa (HRDCSA) has undertaken studies on the recruitment and retention of international migrants with critical skills. What is lacking in South Africa is an institutional arrangement that ensures that information is analysed and used to make strategic decisions on the recruitment and retention of skills within an agreed and responsive framework. One focus should be on taking concrete steps to apply the principle of being oriented to Africa and the African diaspora, such as building skills development partnerships and programmes.